DOJ Petitions Court to Reconsider Enemy Combatant Ruling

The Justice Department filed a petition Wednesday, asking an entire appeals circuit to reconsider a ruling that censured the Bush administration for holding an enemy combatant on U.S. soil.

Earlier this month, a three-judge panel from the 4th Circuit Court of Appeals in Richmond, Va., ruled that Ali Saleh al-Marri, an alleged al Qaeda sleeper, held at a South Carolina Naval brig, is being detained illegally.

The 2 to 1 decision said President Bush had overstepped his constitutional authority in authorizing the detainment.

"Put simply, the Constitution does not allow the president to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so, even if he calls them 'enemy combatants,'" the opinion said in part.

After the ruling came down, Attorney General Alberto Gonzales said he was "disappointed by the decision," and vowed to "seek rehearing … before the entire circuit" — the 13 active members of the 4th Circuit Court of Appeals.

The U.S. government contends al-Marri was preparing to launch a second-wave hit after the Sept. 11, 2001, terrorist attacks, though he has not had a trial nor been convicted of terrorism charges. He was transferred from the criminal justice system to military custody in June 2003.

"If one thing is certain, Congress authorized the president to prevent another September 11 by using military force against the next Mohamed Atta, or comparably situated al Qaeda agents, such as al-Marri who come to America to wage war," DOJ attorneys wrote.

Atta is thought to be the ringleader of the group of hijackers who carried out the 9/11 attacks.

The Justice Department argues that the government has the authority to hold enemy combatants, citing the Authorization for the Use of Military Force, passed by Congress after the 9/11 attacks.

"There is absolutely no textual basis for the panel majority's conclusion that al Qaeda fighters are not covered by the AUMF," DOJ attorneys wrote.

"The panel majority's construction of the AUMF leads to the absurd conclusion that when Congress authorized the use of military force to respond to the September 11 attacks, it did not intend to reach individuals identically situated to the September 11 hijackers, none of whom had engaged in combat operations against our forces on a foreign battlefield."

But al-Marri's attorney, Jonathan Hafetz of the Brennan Center for Justice at the NYU School of Law, told ABC News, "The court's decision was unquestionably correct, and there is no basis for the government's effort to have the full court revisit it."

If the department loses out, it will likely appeal to the Supreme Court.